Council of Ministers confirms provisional agreement on platform work
Belgium gets approval without the votes of France and Germany.
VS – 03/2024
On 11 March, after several failed attempts,
the "Employment, Social Policy, Health and Consumer Affairs Council"
(EPSCO) of Ministers confirmed the provisional agreement reached in the
trialogue on the proposed directive to improve working conditions in platform
work. This means that the dossier can be finalised before the end of this
legislative period. The draft law is intended to help ensure correct
categorisation of the employment status of platform workers. The basis for this
is the actual employment relationship. In addition, the directive contains EU regulations on algorithmic
management and the use of artificial intelligence (AI) in the workplace for the
first time.
Dispute over status determination
Since the presentation of the Commission's
draft, the discussion has centred on how to determine the employment status
of platform workers. The focus was particularly on the criteria used to check
the actual employment status for the rebuttable presumption. The Commission
draft provided for five criteria. The presumption would then be triggered if
two of the five criteria were met. The Council raised the threshold to three
out of seven criteria, while the Parliament had spoken out against EU-wide
binding criteria. As a result, it was not possible to find a compromise that
was acceptable to both sides.
Creative solution from the Belgian Council Presidency
A new approach was therefore chosen in the
provisional agreement reached between the negotiators of the European
Parliament and of the Council on 8 February. Harmonised conditions for
triggering the rebuttable presumption of employment have been waived. Instead,
Member States were obliged to establish an effective mode of action for the
rebuttable presumption of employment, without going into the details of its
application. The term "facts" has been newly introduced. The
determination of employment status should be based on facts that indicate
control and management. The basis for this is the national legislation
applicable in the Member States, taking into account the case law of the
European Court of Justice (ECJ).
Procedural simplifications and burden of proof
The Member States are obliged to
effectively simplify procedures for platform workers compared to the status
quo. This applies in particular to the triggering of a status determination by
platform workers or their representatives and the associated obligations to
provide evidence. In the event that the legal presumption is triggered, the
digital labour platforms can challenge the classification. However, the burden
of proof that no employment relationship exists lies with the digital labour
platforms.
The provision in the original Commission
draft, according to which the status classification applies until the final
decision in the event of a legal caveat, is no longer included in the draft
law.
Pioneering regulations on the use of artificial intelligence
The draft law establishes binding rules for
algorithmic management and the use of artificial intelligence in the workplace
for the first time. This incorporates the AI Act into labour law and takes
account of the employment relationship, characterised by digital processes,
between digital labour platforms and platform workers.
For example, digital labour platforms are
prohibited from making decisions such as dismissals or blocking an account
without human supervision. In addition, digital labour platforms are required
to assess the impact of decisions based on automated monitoring and
decision-making systems on working conditions, health and safety as well as
fundamental rights.
The new regulations also introduce
transparency rules for digital labour platforms. Accordingly, information on
how the algorithms work and how their behaviour affects the decisions made by
the automated systems must be made available to the platform workers and their
representatives.
What's next?
The draft law will be submitted to the
plenary meeting of the European Parliament for approval in April. The Council
of Ministers will then formally adopt the law.